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Weekly Update Volume 30, Issue 16

The U.S. Supreme Court held that a private individual had standing to bring suit in federal court on behalf of the United States under the FCA, but the FCA does not subject a state, or a state agency, to liability in such actions. A former employee of the Vermont Agency of Natural Resources brought a qui tam action under the FCA against the agency in federal court alleging that the agency had submitted false claims to EPA in connection with federal grant programs administered by EPA. Standing for the individual can be found in the doctrine that the assignee of a claim has standing to assert the injury in fact suffered by the assignor. The FCA can reasonably be regarded as effecting a partial assignment of the government's damages claim, and, therefore, the government's injury suffices to confer standing on the individual. However, a state, or state agency, is not a "person" subject to qui tam liability under the FCA. The longstanding interpretive presumption is that "person" does not include states and nothing in the liability provision of the FCA suggests a broadening of the term "person" to include states. Additionally, the current statutory scheme further supports the conclusion that states are not subject to qui tam liability. Justice Scalia delivered the opinion of the Court in which Rehnquist, O'Connor, Kennedy, Thomas, and Breyer joined. Justice Stevens filed a dissenting opinion in which Souter joined. Vermont Agency of Natural Resources v. United States, No. 98-1828 (U.S. May 22, 2000) (36 pp).

SUBMERGED LANDS, FEDERAL OR STATE OWNERSHIP:

The Ninth Circuit held that title to the bed of the Kukpowruk River in Northern Alaska did not pass from the federal government to the state of Alaska when Alaska became a state in 1959. In public land order (PLO) 82 issued in 1943, the federal government withdrew the land in which the riverbed lies from sale, location, selection, and entry. The PLO also included Naval Petroleum Reserve No. 4, which had been withdrawn in 1923 to provide oil and minerals for military purposes. There is a strong presumption that lands beneath navigable waters are held in trust by the United States for future states. Here, however, the federal government clearly intended to include submerged lands when it withdrew public lands in PLO 82. Additionally, Alaska Statehood Act §11(b) retained title to submerged lands in PLO 82 in the United States. In United States v. Alaska, 521 U.S. 1 (1997), the U.S. Supreme Court construed Statehood Act §11(b) and held that title to submerged lands in the Naval Petroleum Reserve No. 4 remained with the United States when Alaska became a state. This ruling encompasses PLO 82 because the PLO land was held for military purposes along with Naval Petroleum Reserve No. 4. Further, title to the riverbed did not pass to the state in 1960 when PLO 82 was revoked. According to the Statehood Act, the United States loses exclusive legislative jurisdiction over lands when they are no longer used for military purposes, but this loss does not cause the loss of title. Finally, the title to navigable rivers presumably held in trust by the United States for states to take title at statehood, does not pass to the state after statehood whenever the purpose that caused the lands to be reserved at statehood is no longer served. Alaska v. United States, No. 98-35310 (9th Cir. May 23, 2000) (16 pp.).

DORMANT COMMERCE CLAUSE, SOLID WASTE REMOVAL:

The Sixth Circuit reversed a district court holding that an exclusive franchise agreement between a county and a solid waste handler did not violate the dormant Commerce Clause. The agreement gave the waste handler the exclusive right to collect and process all municipal solid waste in the county. It also required that all residential, commercial, and industrial entities that generate municipal solid waste in the county must use the waste handler and gave the handler the ability to set fees. The county passed an ordinance executing the agreement and incorporating its provisions by reference. The laundry detergent manufacturer that challenged the ordinance had standing to sue. In addition to showing injury-in-fact, a causal connection, and redressability, the manufacturer pled an injury that falls within the zone of interests protected by the Commerce Clause. The county's requirement that all municipal waste collected by the handler be processed at a single transfer station in the county is not shielded from Commerce Clause scrutiny by the market participation exemption. The county was not acting in a proprietary capacity; it did not purchase the processing services with public funds, nor did it sell its own processing services. Additionally, the county did not act as a market participant when it prohibited out-of-state disposal of the county's municipal waste because the county neither bought nor sold disposal services with the taxpayer funds. Finally, the county was using its regulatory power, not its proprietary purchasing power, when it granted the waste handler an exclusive right to collect and process the county's municipal waste. Huish Detergents, Inc. v. Warren County, Kentucky, No. 98-5566 (6th Cir. May 31, 2000) (11 pp.).

The Second Circuit affirmed a district court holding that hazardous waste regulatory charges imposed by New York on federal installations operated by DOE in New York are reasonable service charges within the meaning of the RCRA provision that waives the sovereign immunity of the United States. The waste regulatory charges represent a fair approximation of the federal installations' use of New York's environmental program. They are calculated on a basis that reflects the size of an entity's operations, specifically on the tons of hazardous waste generated and received annually. By assessing a higher charge based on the amount of hazardous waste generated or received, the method of calculating the hazardous waste program charges is reasonably designed to fairly approximate use of the hazardous waste system's available services, and, thereby, to approximate the cost of supplying such services. Additionally, because the system used by New York fairly approximates the use and costs of available services, it is irrelevant how New York segregates the money it collects. Further, the method used to impose the service charges is reasonable as applied to DOE's facilities and does not greatly exceed the actual cost of supplying services to the facilities. In calculating the ratio of charges to services, DOE incorrectly limited the calculation to services used, rather than including services or benefits available for use. Jorling v. United States Department of Energy, No. 99-6188 (2d Cir. May 31, 2000) (11 pp.).

ESA, COMMERCE CLAUSE:

The Fourth Circuit upheld the constitutionality of a U.S. Fish and Wildlife Service regulation limiting the "taking" of red wolves on private land, finding that such takings implicate a variety of commercial activities and are closely connected to interstate markets. The wolves are taken by farmers and ranchers concerned that the animals will pose a risk to their commercially valuable livestock and crops. Moreover, interstate tourism, scientific research, and control of interstate trading in pelts are involved and justify federal regulation. Accordingly, individual takings of wolves may be aggregated for Commerce Clause purposes under the test set forth in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, Nos. 99-5, -29 (U.S. May 15, 2000). Finally, the regulation is part of a larger supervision of economic activity through the ESA, and an interpretation of the Commerce Clause that finds endangered species to be beyond federal regulatory authority would be inconsistent with the comprehensive federal scheme. Gibbs v. Babbitt, No. 99-1218 (4th Cir. June 6, 2000) (23 pp.).

JURISDICTION, CERCLA, ACCESS TO PUBLIC DOCUMENTS AND PROCEEDINGS:

The Ninth Circuit reversed and remanded a district court decision and held that a state court action brought by a CERCLA PRP to obtain documents pertaining to the environmental cleanup from the state cannot be removed to federal court. In accordance with Montana state law, the PRP brought suit in Montana state court seeking to obtain access to public documents and proceedings related to the environmental cleanup for which it is a PRP. The state environmental agency removed the case to federal court and joined EPA as a defendant. The PRP's claims do not arise under federal law and, therefore, the case does not fall within either the federal courts' federal question or exclusive original jurisdiction. CERCLA does not completely occupy and preempt the field of environmental regulation. Moreover, the PRP's claims do not constitute a challenge to the CERCLA cleanup at issue, and the relief sought does not alter cleanup requirements or environmental standards. Therefore, the claims are not federal claims under CERCLA §113(b). Additionally, an action does not become a challenge to a CERCLA cleanup simply because the action has an incidental effect on the progress of a CERCLA cleanup. Further, the PRP's right to relief does not depend on the resolution of any federal law question; instead, the claims must be determined according to Montana law. Finally, more than 30 days have elapsed since the action was filed in Montana state court, so the state environmental agency may not state alternative bases for removal jurisdiction. ARCO Environmental Remediation, L.L.C. v. Department of Health & Environmental Quality of the State of Montana, No. 99-36033 (9th Cir. May 24, 2000) (19 pp.).

The Second Circuit affirmed a district court decision that oil companies' CERCLA claims against a textile manufacturer were not discharged in the manufacturer's bankruptcy proceedings and held that the oil companies are prohibited as a matter of law from bringing RCRA claims against the manufacturer. The manufacturer filed its petition for bankruptcy on August 31, 1976. CERCLA was not enacted until December 11, 1980. Therefore, the oil companies' CERCLA claims against the manufacturer arose after the manufacturer's petition for bankruptcy and were not automatically discharged in the bankruptcy proceedings. Moreover, the oil companies' CERCLA claims arose after the manufacturer filed the petition for bankruptcy but before the reorganization of the manufacturer was complete and are, therefore, administrative claims under the reorganization plan. This plan specifically excepted from discharge and permanent injunction all administrative claims. Thus, the oil companies' CERCLA claims that arose post-petition and during the reorganization are not enjoined or discharged by the manufacturer's bankruptcy proceedings. Additionally, the oil companies are foreclosed from bringing RCRA claims against the manufacturer because the citizen suits brought by the oil companies were prohibited due to enforcement actions undertaken by EPA. Finally, the court remands the oil companies' common-law claims for strict liability and equitable disgorgement against the manufacturer for resolution of when the claims arose. In re: DuPlan Corp. & DuPlan Fabrics, Inc., Nos. 99-5015(L) et al. (2d Cir. May 15, 2000) (25 pp.).

The Second Circuit vacated and remanded a district court decision that found the presence of a steel manufacturing company destroyed diversity jurisdiction and warranted dismissal in a case for indemnification of environmental cleanup costs. A company owner entered an agreement to sell all its shares to the company manager. To obtain regulatory approval, the parties entered a consent decree with the New Jersey Department of Environmental Protection for the cleanup of the company's facility. After the voluntary dismissal of the manager's state court action against the owner's successors for misrepresentation and failure to complete the cleanup, the successors sued the manager in federal court for breach of contractual indemnity for cleanup costs at the facility. A neighbor of the facility, a third-party defendant in the suit, brought a fourth-party complaint against the company. The district court determined that the company was an indispensable party but that its presence destroyed diversity jurisdiction and, therefore, warranted dismissal of the case. However, the district court could have exercised supplemental jurisdiction over any of the claims brought by the company without destroying the court's original diversity jurisdiction. The original suit fell within the diversity jurisdiction of the district court. The substance of the company's claims against the successors were identical to those of the manager against the successors and, therefore, part of the same case or controversy. Additionally, although the exercise of supplemental jurisdiction is discretionary, there was no reason for the court to decline to exercise supplemental jurisdiction over the site's claims in the instant case. Viacom International, Inc. v. Kearney, No. 99-7797 (2d Cir. May 19, 2000) (15 pp.).

CERCLA §107(a), CONTRIBUTION:

The Eleventh Circuit held that two customers of an electroplating company did not "arrange for" the disposal of the electroplating company’s hazardous waste under CERCLA 107(a), and, therefore, the company could not seek contribution from the customers for cleanup costs at a contaminated property. Both customers knew that the electroplating company operated in dilapidated facilities and that its process produced hazardous waste. However, the first customer was not aware of and had no control over the electroplating company’s disposal practices, and any money it gave or loaned to the company was not for the purpose of disposing of waste. Likewise, the second customer could not be ruled a constructive owner. The second customer only owned the parts being electroplated, and the hazardous waste was only an inherent part of the electroplating process. Further, the second customer did not have enough knowledge of the company’s disposal practices to be liable for arranging for disposal. Moreover, even though the second customer’s contract required the company to follow all applicable laws, the customer was not required to see if they complied. Concrete Sales and Services, Inc. v. Blue Bird Body Co., No. 99-8241 (11th Cir. May 15, 2000) (6 pp.).

The Eleventh Circuit held that a city holding a security interest in property for the purpose of securing repayment of development bonds that financed acquisition of the property qualifies for a CERCLA §101(20)(A) secured creditor exception to CERCLA liability. In 1952, the city purchased the property at issue and leased it to a manufacturer in order to promote economic development. Subsequently, the manufacturer sought contribution from the city for the cost of cleaning up hazardous substances discharged to the land by the manufacturer. However, persuasive precedent dictates that where an entity holds indicia of ownership primarily to protect a security interest, it is not liable under CERCLA. Here, the city only held indicia of ownership to protect a security interest, which fell within the CERCLA §101(20)(G)(vi) definition of "security interest" applicable to CERCLA §101(20)(A)'s secured creditor exception. Further, a state law that limits municipal purchases of property to those necessary for public purposes does not preclude the city from arguing that it held title to protect a security interest. The city purchased the property for the public purpose of economic development, and it retained indicia of ownership to protect that investment. Monarch Tile, Inc. v. City of Florence, No. 99-11372 (11th Cir. May 25, 2000)(5 pp.).

CZMA, NEPA:

The Ninth Circuit held that the U.S. Postal Service’s failure to wait for final state approval of an experimental program to deliver mail by hovercraft was not a compelling reason under the CZMA for setting aside a consistency agreement between the Postal Service and the state on the environmental impact of the program. In addition, NEPA did not require the Postal Service to defer to the FWS or consider all possible alternatives to the program. The fact that the Postal Service began the program before getting a final consistency report from the state was not a compelling reason for ignoring the state’s ultimate approval in its final report. Further, although the Postal Service’s EA indicated the possibility of environmental impact from the program, the finding of no environmental impact was valid under NEPA because the EA was sufficiently thorough. Also, the Postal Service was only required to consider the FWS’ concerns with the program, not defer to them. Likewise, because of its duty to efficiently deliver the mail, the Postal Service was not required to consider inefficient alternatives or a "no action" alternative. Moreover, although the assessment did not spell out specific remedies to potential environmental impacts, the Postal Service was only required to do so if it found there were substantial questions as to whether an impact would result. Akiak Native Community v. United States Postal Service, No. 98-35466 (9th Cir. May 25, 2000)(11 pp.).

APA, SOVEREIGN IMMUNITY, APPROPRIATE STANDARD OF REVIEW:

The Second Circuit reconsidered and granted rehearing on its holding that pursuant to the waiver of sovereign immunity in the APA, 5 U.S.C. §702, EPA's refusal to respond to a corporation's nonparty subpoena is subject to judicial review under the standard of review in the APA, 5 U.S.C. §706(2)(A). The corporation makes the plausible argument that even though 5 U.S.C. §702 provides the waiver of EPA's sovereign immunity, such waiver does not necessarily mean that the APA furnishes the appropriate standard of review. Further, the question of the appropriate standard was not reached by the district court or argued in the Second Circuit. In addition, it may be unnecessary for the standard of review to be decided in this case, but if the question must be decided, the district court will have the benefit of a full hearing. United States Environmental Protection Agency v. General Electric Co., No. 98-6279 (2d Cir. May 15, 2000) (7 pp.).

The Ninth Circuit held that RHA §§10 and 12 contain an implied removal and reimbursement remedy that allowed the U.S. Army Corps of Engineers to recover from a pier owner the costs of removing two piers in order to create a larger turning basin in California's Oakland Harbor. RHA §10 prohibits the construction of obstructions in navigable water. Under RHA §10, piers are presumed to be obstructions, and the pier owner failed to rebut the presumption that the piers at issue obstructed the navigable capacity of the harbor. In addition, the RHA entitled the Corps to a removal and reimbursement remedy even though RHA §12, which provides remedies for removal of structures, does not expressly provide for such a remedy. According to U.S. Supreme Court precedent, the RHA's statutory remedies in the RHA are not exclusive. Further, the Supreme Court implied a removal and reimbursement remedy in favor of the United States under RHA §15, which does not even authorize injunctive relief. Therefore, a removal and reimbursement remedy can be implied in RHA §12, and thus RHA §10, because RHA §12 expressly provides for injunctive relief and where injunctive relief is already available the case for implying a self-help remedy, such as removal and reimbursement, is stronger. Moreover, a Corps engineering regulation prohibiting pier removal where a local authority can condemn property does not render the pier removals improper. The regulation is only a policy statement and is not binding on the Corps. United States v. Alameda Gateway, Ltd., No. 99-15642 (9th Cir. May 26, 2000) (9 pp.).

HAZARDOUS SUBSTANCE RELEASES, EPA ACCESS TO SITE, RESPONSE ACTIONS:

A district court denied EPA's motion seeking an order requiring a landowner to allow EPA access to his property in order to test water on the property to determine if it has been contaminated by an alleged release of hazardous substances. The court previously denied an EPA motion for access to implement response actions addressing the alleged release because the landowner had demonstrated that EPA had failed to follow its own established methods for determining when a response action was necessary. Similarly, EPA-offered evidence for the motion at issue did not establish that the landowner refused access to his property for the purpose of testing for contaminated water. Moreover, EPA's request for access goes beyond what would be called for by the court's findings in the previous motion concerning the nature of the releases or threatened releases that EPA has a reasonable basis to believe have occurred or may occur on the landowner's property. United States v. Tarkowski, No. 99 C 7308 (N.D. Ill. May 30, 2000) (Kennelly, J.) (4 pp.).

A district court held that the Superfund Recycling Equity Act's CERCLA §127 exemption from liability for certain recyclers applies to non-federal CERCLA enforcement actions pending at the time of CERCLA §127's enactment. Therefore, CERCLA §127's exemption applies to a state environmental agency's CERCLA §§107(a) and 113(g) actions against several scrap metal recyclers. In enacting the Superfund Recycling Equity Act, Congress did not explicitly mention every class of pending case to which the CERCLA §127 liability exemption applies. Nevertheless, the Superfund Recycling Equity Act's structure, express language, purpose, and legislative history militate in favor of retrospectivity as to all pending actions brought by any party except the United States. However, the retrospective application of the exemption to pending actions does not result in automatic exemption because any party seeking to avoid liability under CERCLA §127 must prove by a preponderance of the evidence all of the exemption requirements. In addition, the exemption does not apply retroactively to actions resolved before the passage of the Superfund Recycling Equity Act. Department of Toxic Substances Control v. Interstate Non-Ferrous Corp., No. CV-F-97-5016 OWW LJO (E.D. Cal. May 25, 2000) (Wanger, J.) (32 pp.).

A district court granted summary judgment to the DOI based on its approval of a habitat conservation plan (HCP) and an incidental take permit (ITP) for sea turtles in Volusia County, Florida. Citizens brought an action against the county, and eventually the DOI, seeking an injunction against artificial beachfront lighting and beach driving. After concluding that vehicular access to its beaches resulted in an unlawful taking of the turtles, the county obtained an ITP. The HCP done in preparation for the ITP provides a thorough analysis of the human activities likely to harm the greatest numbers of sea turtles, details the proposed measures to minimize and mitigate any incidental takes, and presents considered alternatives. Additionally, the DOI's approval of the ITP and its acceptance of the county's budgeting and appropriation funds for HCP and ITP compliance as adequate funding were neither arbitrary nor capricious. Further, the DOI properly considered scientific data in reaching its decision. Moreover, the decision to revoke a permit for noncompliance is a discretionary one left up to the agency, and the DOI did not violate the ESA by deciding not to revoke the county's permit. Finally, the DOI did not violate the ESA by refusing to reinitiate consultation regarding the permit. Loggerhead Turtle v. County Council of Volusia County, Florida, No. 6:95-cv-587-Orl-22B (M.D. Fla. May 17, 2000) (Conway, J.) (39 pp.).

A district court affirmed a bankruptcy court's order allowing a bankrupt landowner to abandon real property without first requiring the landowner to comply with the ISRA and other state environmental laws concerning contaminated property. Under Bankruptcy Code §554(a), a trustee of a bankrupt debtor may abandon property that is burdensome or of no value, but according to the U.S. Supreme Court in Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 16 ELR 20278 (1986), a trustee cannot abandon property in contravention of a state statute or regulation designed to protect the public health of safety. The bankruptcy court properly placed the burden of proving the Midlantic exception to Bankruptcy Code §554(a) on the state. The state has the affirmative on three of the four elements to the Midlantic exception; whether an identified hazard poses a risk of imminent identifiable harm to public safety, whether abandonment violates a state statute or regulation, and whether the statute being violated is designed to protect the public health and environment from imminent and identifiable harm caused by the identified hazards. As to the fourth Midlantic element--compliance with the state law at issue would not interfere with the bankruptcy administration--the burden lies with the trustee, but the fourth element is an exception to the exception and must be met only when the first three elements are met. In this case, the state failed to identify an existing hazard that poses a risk of imminent and identifiable harm to the public health and safety. All the admissible evidence offered in the bankruptcy court demonstrates that the property does not pose a risk of imminent and identifiable harm. In addition, ISRA's purpose is broad and encompasses more than protecting the public health and safety. Therefore, ISRA is preempted by Bankruptcy Code §554(a) except to the extent that any of ISRA's provisions are reasonably calculated to protect public health and safety, but the state failed to prove which of ISRA's provisions are so calculated. St. Lawrence Corp. v. Atkinson (In re St. Lawrence Corp.), Bankruptcy No. 98-50249 SAS (D.N.J. May 23, 2000) (11 pp.).

A New York appellate court reversed a lower court's holding that a town's rezoning of a parcel of land and the road that led to it constituted a regulatory taking of an emery mine that the mine owner intended to convert into a crushed-stone quarry. The town amended its zoning code to prohibit mining on the land at issue and to prohibit heavy trucking on the one road leading to the mine. However, the owner failed to show that under no permissible use would the land as a whole be capable of producing reasonable return. The owner could have continued to operate the emery mine as a legal nonconforming use. The fact that the owner may not be able to operate a crushed-stone quarry generating 250 times the annual tonnage of the emery mine does not mean that the owner has been deprived of the reasonable return on its investment. Thus, the rezoning at issue cannot be construed as to deprive the property of all economic value. Further, the owner failed to prove that the rezoning precluded using the land for residential development. The owner could not prove that residential septic systems could not be installed. Moreover, the rezoning of the road expressly allows construction vehicles for residential development. In addition, even assuming a regulatory taking had occurred, the lower court's award of damages was conjectural. The lower court ascribed to the parcel a certain value based on its use as a fully operational crushed-stone quarry. However, the owner had yet to receive the necessary permits to mine stone, and it was entirely speculative to assume that any permit would be forthcoming. Briarcliff Associates, Inc. v. Town of Cortlandt, No. 1268B (N.Y. App. Div. May 22, 2000) (7 pp.).

RES JUDICATA, HAZARDOUS WASTE:

A Washington appellate court affirmed a trial court's grant of summary judgment to a corporation that leased a landowner's farm land on an individual's statutory hazardous waste claims because the claims were barred by res judicata. The landowner leased his farm land to an individual who in turn leased it to the corporation, which disposed of the rinsed residue of various fertilizers and pesticides on the land. The landowner alleged that the rinsate caused crop damage and soil contamination. The landowner's statutory hazardous waste claims were barred by res judicata because a trial court previously dismissed allegations by the landowner that claimed mishandling of hazardous materials and these broad original allegations encompassed the statutory hazardous waste claims at issue in this litigation. Additionally, the subject matter was the same, and there was identity of parties and persons against whom the claims were made. Further, even if the statutory claim had remained viable, it would be irrelevant because the violation of a statute is merely evidence of negligence and the jury in this case found negligence, but not the necessary proximate cause for the resulting damage. The trial court also properly denied the landowner's motion to set aside judgment in favor of the corporation on a promissory note; excluded the deposition of one expert and the majority of a report of another expert; and concluded that a juror's use of a computer during trial and deliberations was not juror misconduct requiring a new trial. DeYoung v. Cenex Ltd., No. 18404-8-III (Wash. Ct. App. May 25, 2000) (21 pp.).

STANDING, WATER RIGHTS:

A Nebraska appellate court reversed and remanded a trial court decision that water district residents did not have standing to challenge the district's settlement agreement with hog confinement facility operators. The facility operators had applied for and had been denied water use variances sufficient to operate the facilities on properties owned by them. Subsequently, the district entered settlement agreements with the operators, effectively granting them the variance and allowing them to use the groundwater that was the original subject matter of their application for a variance. The residents have standing to challenge the settlement agreements between the district and the operators. As residents and water users in the district, they have an interest in protecting the limited water supply under their lands. Additionally, the residents have an interest in the district's allotment of water and granting of requests for variances in accordance with the required rules. Hagan v. Upper Republican Natural Resources District, No. A-99-374 (Neb. Ct. App. May 23, 2000) (7 pp.).

A Maryland appellate court held that a lower court improperly certified two classes of plaintiffs injured by tobacco use or nicotine addiction. Although the number of potential plaintiffs, the issues, the course of conduct surrounding the claims, and the adequacy of representation involved in the class certification at least arguably satisfied Maryland Rule 2-231's numerosity, commonality, typicality, and adequacy of representation requirements for class actions, the class certification failed to meet Rule 2-231's predominance requirement. Too many individualized issues of law or fact, such as injury-in-fact, causation, reliance, and individual defenses, existed. Thus, class certification is simply not appropriate in the face of so many individualized, significant issues. Moreover, it cannot be said that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The plaintiffs' theory of liability directly relies on their being able to prove that cigarettes are addictive and that the tobacco companies knew that cigarettes are addictive and cause cancer and other health problems. However, few if any individual tobacco cases have been litigated or are currently pending in Maryland. As a result, without a proven track record of individual trials, a class action tobacco litigation in Maryland is immature because it is necessarily based on speculation. Further, the treatment of punitive damages under the class certification scheme would improperly determine damages before any finding of liability to any class member. In addition, the lower court improperly certified the plaintiffs' medical monitoring claims under Rule 2-231(b)(2). Although the possibility of medical monitoring as a viable cause of action or as an element of damages is not ruled out, the medical monitoring claims cannot be certified under Rule 2-231(b)(2) because Rule 2-231(b)(2) addresses class actions for equitable relief and the plaintiffs' medical monitoring claims primarily seek monetary damages. Philip Morris, Inc. v. Angeletti, No. 96145050/CE212596 (Md. Ct. App. May 17, 2000) (72 pp.).

EPA issued a notice of proposed rulemaking for a comprehensive national control program that would regulate the heavy-duty vehicle and its fuel as a single system. 65 FR 35429, 65 FR 35479, 65 FR 35529 (6/2/00).

EPA amended the operating permits program regulations by extending all operating permits program interim approvals to December 1, 2001. 65 FR 32035 (5/22/00).

EPA issued an interpretive rule that clarifies EPA's construction of the applicability of CAA §§112(g) and 112(j) and their implementing regulations for stationary combustion turbines in Subpart B--Requirements for Control Technology Determinations for Major Sources in Accordance With Clean Air Act Sections 1122(g) and 112(j). 65 FR 34009 (5/25/00).

EPA withdrew an interpretive rule published in the April 21, 2000, Federal Register at 65 Fed. Reg. 21363 that was intended to clarify the applicability of §§112(g) and 112(j) of the CAA to all stationary combustion turbines and waste heat recovery units in combined cycle systems. 65 FR 34012 (5/25/00).

EPA proposed a NESHAP for new and existing sources at wet-formed fiberglass mat production facilities. 65 FR 34277 (5/26/00).

EPA approved Colorado's request to redesignate Canon City, Colo., from nonattainment to attainment for particulate matter having an aerodynamic diameter less than or equal to 10 microns. 65 FR 34399 (5/30/00).

EPA removed the zero maximum contaminant level goal for chloroform from its national primary drinking water regulations in accordance with a recent order of the U.S. Court of Appeals for the District of Columbia in Chlorine Chemistry Council and Chemical Manufacturers Association v. EPA, (No. 98-1627) filed on March 31, 2000. 40 CFR pt. 141, 65 FR 34404 (5/30/00).

ENDANGERED SPECIES:

EPA issued a final rule to list the Northern California evolutionarily significant unit of steelhead as a threatened species. 65 FR 36074 (6/7/00).

The National Marine Fisheries Service (NMFS) designated the Cook Inlet, Alaska, stock of beluga whales as depleted under the Marine Mammal Protection Act because the stock has fallen under its optimum sustainable population levels. 65 FR 34590 (5/31/00).

FWS and the NMFS announced the availability of a final addendum to the Handbook for Habitat Conservation Planning and Incidental Take Permitting Process. 65 FR 35241 (6/1/00).

EPA took direct final action on the Federal Plan Requirements for Large Municipal Waste Combustors Constructed on or Before September 20, 1994, which was adopted November 12, 1998. 65 FR 33461 (5/24/00).

EPA entered into a proposed agreement and covenant not to sue under CERCLA in connection with the Nahant Marsh Superfund site in Davenport, Iowa. 65 FR 32090 (5/22/00).

EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the Hoxie Superfund Crash site in Hoxie, Kan. 65 FR 34180 (5/26/00).

EPA entered into a proposed prospective purchaser agreement under CERCLA §§106 and 107 for the former O'Shux Golf Course adjacent to the Copley Square Plaza Superfund site in Copely, Ohio. 65 FR 34180 (5/26/00).

EPA approved a request submitted by FMC Corporation for a one-year case-by-case extension of the May 26, 2000, effective date of the RCRA land disposal restrictions applicable to five hazardous wastes generated by FMC at its Pocatello, Idaho, facility. 65 FR 34694 (5/31/00).

President Clinton issued Executive Order 13158, Marine Protected Areas, to strengthen the management, protection, and conservation of existing marine protected areas and establish new or expanded marine protected areas; to develop a scientifically based, comprehensive national system of marine protected areas representing diverse U.S. marine ecosystems and the nation's natural and cultural resources; and to avoid causing harm to marine protected areas through federally conducted, approved, or funded activities. 65 FR 34909 (5/31/00).

NOAA proposed to amend regulations governing activities in the Gulf of the Farallones National Marine Sanctuary to prohibit the operation of motorized personal watercraft within the boundaries of the Sanctuary. 65 FR 32048 (5/22/00).

NOAA announced the availability of the Guidelines for Economic Analysis of Fishery Management Actions, which provide guidance on meeting the procedural and analytical requirements of Executive Order 12866 and the Regulatory Flexibility Act for regulatory actions of federally managed fisheries. 65 FR 32078 (5/22/00).

FWS issued a refuge planning policy pursuant to the National Wildlife Refuge System Administration Act as amended by the National Wildlife Refuge System Improvement Act of 1997. 65 FR 33891 (5/25/00).

The National Marine Fisheries Service issued a final rule to designate an official mark that can be used to label tuna products as being "dolphin safe." 65 FR 34408 (5/30/00).

The Bonneville Power Administration, in accordance with DOE regulations, will prepare a floodplain and wetlands assessment in connection with its proposal to fund construction of a supplementation hatchery facility for the Coeur d'Alene Tribe in floodplains and wetlands located in Kootenai and Benewah Counties, Idaho. 65 FR 35625 (6/5/00).

PESTICIDES:

EPA issued a notice that clarifies several aspects of the exemption for minimum risk pesticides by FIFRA §25(b) rule, including composition, labeling, food tolerances, and state regulations. 65 FR 33542 (5/24/00).

EPA revoked the acute criteria for selenium from the final water quality guidance for the Great Lakes System. 65 FR 35283 (6/2/00).

EPA announced the availability of a nutrient criteria technical guidance manual for lakes and reservoirs. 65 FR 33322 (5/23/00).

EPA announced that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for waters of the Shrewsbury River, in the County of Monmouth, N.J. 65 FR 32091 (5/22/00).

EPA announced that it proposed to make an affirmative determination that adequate facilities exist for the safe and sanitary removal and treatment of sewage from all vessels on Lake Powell in Arizona and Utah. 65 FR 32093 (5/22/00).

U.S. v. Alpha Metals, Inc., No. G-00250 (S.D. Tex. May 5, 2000) (CERCLA defendants must perform the cleanup of the Tex Tin Superfund site in Texas City, Tex., financed in substantial part by settling federal agencies, at an estimated cost of approximately $27 million; must finance a proposed remedy addressing continued erosion in the Swan Lake Marsh area near Galveston Bay; must pay natural resource damages related to losses and injuries in the Swan Lake Marsh area, and must reimburse Amoco Chemical Company for past response costs for work it performed at the site), 65 FR 32123 (5/22/00);

U.S. v. Scott County Sportsmen's Ass'n, No. 30-00-CV-10052 (S.D. Iowa Apr. 18, 2000) (a CERCLA defendant, in connection with the Nahant Marsh Superfund site in Davenport, Iowa, must record a conservation easement for its property at the site in favor of the Iowa Natural Heritage Foundation for preservation of the land as a reserve for wildlife and to prevent residential, commercial, and industrial development of the land; must transfer ownership of its property at the site to the city of Davenport, Iowa; and must pay all proceeds from the sale to the United States), 65 FR 32125 (5/22/00);

U.S. v. IBP, Inc., No. 8:00-CV-28 (D. Neb. May 23, 2000) (a CAA defendant that failed to install required air pollution equipment when it updated its meatpacking plant and associated tannery and wastewater treatment facility in Dakota City, Neb., which resulted in the illegal emission of excessive amounts of hydrogen sulfide into the air, must build three new covered wastewater treatment lagoons by November 30, 2000; must decommission its existing, uncovered lagoons; must undertake additional projects to limit the release of hydrogen sulfide into the air; must treat over three million gallons of well water used at its plant each day; and must install seven on-site and two off-site air monitoring devices to monitor hydrogen sulfide from its wastewater treatment facility as set forth in an earlier administrative order on consent), 65 FR 35670 (6/5/00);

U.S. v. ITT Industries, Inc., No. CV 99-00552 MRP (ANx) (C.D. Cal. May 17, 2000) (settling CERCLA defendants must fund and perform future response actions at the Glendale North and South Operable Units of the San Fernando Valley Basin Superfund site in Southern California; must construct, operate, and maintain a groundwater exaction and treatment system; and must pay $13,226,949 in past EPA response costs, $38,053 in DOJ costs, and $83,550 in past California Department of Toxic Substance Control costs; the city of Glendale, a party to the decree but not a defendant in the complaint, will assume responsibility for future operation and maintenance of the extraction and treatment system, as well as of certain other facilities), 65 FR 35671 (6/5/00);

U.S. v. Natural Gas Processing Co., No. CV 00-65-RFC (D. Mont. May 11, 2000) (one SDWA defendant must pay a $54,000 civil penalty; a second SDWA defendant must pay a $25,000 civil penalty and must perform a supplemental environmental project involving the plugging of one or more abandoned class II underground injection control wells in Montana), 65 FR 35671 (6/5/00);

U.S. v. Holden, No. 00CV11036EFH (D. Mass. May 26, 2000) (settling CERCLA defendants that qualify for a de minimis settlement must record an environmental restriction and easement with respect to each of their properties located at the Nyanza Chemical Waste Dump Superfund site in Ashland, Mass.), 65 FR 36466 (6/8/00);

U.S. v. Dyer, No. 00CV11013 (D. Mass. May 23, 2000) ( CWA defendants that discharged pollutants into U.S. waters at portions of an approximately 107 acre parcel of land in Bridgewater, Mass., must pay a total of $12,000 in civil penalties over a four year period, must restore and/or mitigate the damages caused by their unlawful activities, and are prohibited from discharging pollutants into U.S. waters without U.S. authorization), 65 FR 36716 (6/9/00);

U.S. v. Johnson, No. 00CV11014 (D. Mass. May 23, 2000) ( CWA defendants that discharged dredged or fill material and/or controlled and directed the discharge of dredged or fill material in U.S. waters at portions of an approximately 107 acre parcel of land in Bridgewater, Mass., must pay a total of $1,500 in civil penalties), 65 FR 36715 (6/9/00);

U.S. v. Elsa Morgan-Skinner, No. C-1-00-424 (S.D. Ohio May 26, 2000). In two consent decrees concerning the Skinner Landfill Superfund site in West Chester, Ohio, settling CERCLA defendants must implement an EPA-approved remedial action at the site and must implement the interception, capture, and treatment of contaminated groundwater located down-gradient from the capped area; the settling owner of the site must sell an option to purchase the site for $5,000 to the work parties, with any proceeds going to the Skinner Landfill Special Account; two settling federal agencies must pay $602,599 into the account; settling de minimis federal agencies must pay $87,804.29 into the account; and settling municipalities must pay a total of $17,218 into the special account), 65 FR 36716 (6/9/00);

Proposed revisions to Division 3 of the Administrative Code will incorporate NSPS and NESHAP revisions from Sept. 1999 through March 2000. Other provisions affected include Chapter 335-3-1 (clarification of definition of "New Source") and Chapter 335-3-16, which is being revised to seek final approval of the state's Title V Major Source Operating Permit Program. Written comments due June 19. For details, see http://www.adem.state.al.us/propdiv3.html

Alabama Disposal Solution Landfill, LLC, for permit to operate a municipal solid waste landfill in Lowndes County. The service area would consist of the entire state except Mobile and Jefferson counties. Comments due July 12. Details at http://www.adem.state.al.us/5adstall.html

Governing Board adopted revisions to Rule 461 on April 21. The revisions require more frequent testing of USTs, gas pumps, and associated hardware. Increased inspection frequency and new requirements for training for equipment testers are also included. See http://www.aqmd.gov/news1/Governing_Board/Bs4_21_00.htm

Public workshop June 28 to discuss DEP's recommendations regarding intended use of fiscal year 2001 Safe Drinking Water Act appropriations and state matching funds.

July 27 workshop regarding proposed revisions to the Department's Standard Operating Procedures for Field and Laboratory Operations. The Department proposes to delete all laboratory procedures from the document.

June 23 meeting to discuss methodology for including impaired waters on a §303(d) list.

Public hearing on June 29 will concern adoption of fiscal year 2001 Wastewater State Revolving Fund priority list; about $2.5 million will be available.

Stormwater Loan Priority List

Subject of June 30 public hearing.

Southwest Florida Water Management District

Proposed Regulation

Concerns adoption by reference of Fla. Rule 40E-4.091, regarding side slope requirements for water retention/detention and stormwater attenuation areas.

Proposed Regulation-Wetlands, Surface Waters

Amendments would establish time frame within which the District must act in evaluating a Petition for a Formal Determination of Wetlands and Other Surface Waters. Public hearing, if requested, will be held after subsequent notice.

Proposed amendments to Chapter 391-3-1, Procedures for Testing and Monitoring Sources of Air Pollutants, and amendments to the SIP for attaining the ozone standard in the Atlanta Ozone Nonattainment Area. Public hearing July 12; will be taken up at July 26 meeting of Board of Natural Resources. For details, see http://www.ganet.org/dnr/environ/

Proposed revisions to Part 742 rules (the "TACO" regulations) accepted for hearing May 18. At least two substantive amendments, concerning the addition of MTBE as a contaminant to be tested for, and the replacement of existing Subpart J provisions dealing with deed restrictions as institutional controls. The new instrument will be entitled "Environmental Land Use Controls." See http://www.ipcb.state.il.us/news/news.htm

Revisions to LAC 33:V.625, 630, 635, 660, and 717, Remedial Action Plans; proposed repeal of certain regulations dealing with control of emissions from motor vehicles and related fees; proposed amendments to LAC 33:XV.2508, dealing with fee determination. For further information, including copies of the proposed regulations and comment information, see http://www.deq.state.la.us/planning/regs/addition/2000

Proposed Regulations-Solid Waste

Proposed revisions to LAC 33:VII.Chapter 105 would simplify standards for waste tire generators, transporters, and recyclers, and implement a fee required by Act 1015 (1999) on off-road tires for their disposal and/or recycling. Comments are due by July 3. Details at http://www.deq.state.la.us/planning/regs/index.htm

A total of 17 meetings were held through May 18 to receive public comment on the draft §303(d) report. Comments are due June 19. The data report and waterbody data listings are available at http://nris.state.mt.us/wis/environet

Air Quality Council will consider amendments to OAC 252:100-7, Permits for Minor Facilities; OAC 252:100-8, Permits for Part 70 Sources; and OAC 252:100-29, Control of Fugitive Dust, at their June 14 meeting. See http://www.deq.state.ok.us/calendar/index.html

Proposed revisions to 30 TAC Chapter 205, General Permits for Waste Discharges, to address stormwater discharges, add a compliance history provision, and delete a current limitation on discharges within a 24-hour period. Public hearing June 29; comments due July 3. See http://www.tnrcc.state.tx.us/oprd/hearings/99034205.html

Regulations are being drafted that would create a NOx trading program in Houston-Galveston nonattainment area and would reduce the duration of emission reduction credits from ten to five years. A September comment period is expected.